Opinion
Index No. 450325/2016
01-16-2019
MELINDA RIOS, Plaintiff v. OREN SENDOWSKI and MARBLE HILL PARTNERS LLC, Defendants
NYSCEF DOC. NO. 102
DECISION AND ORDER
LUCY BILLINGS, J.S.C.:
I. THE RELIEF PLAINTIFF SEEKS VIA HER MOTION FOR SUMMARY JUDGMENT
Plaintiff Melinda Rios moves for summary judgment on her breach of contract claim, C.P.L.R. § 3212(b), and to dismiss defendants' second through sixth affirmative defenses. C.P.L.R. § 3211(b). The contract that she claims defendants, Oren Sendowski and Marble Hill Partners LLC, breached, however, is a Commission Fee Agreement dated February 20, 2013, between Melinda Rios Inc., not plaintiff Rios, and "Oren Sendowski/GMAC REAL ESTATE." Aff. in Supp. of Melinda Rios Ex. C. Oren Sendowski was working with GMAC Real Estate Company as a commercial real estate consultant. The commission is for brokering a lease for a term of five years between defendant landlord Marble Hill Partners LLC and tenant Miniventures Inc. Daycare Center, which plaintiff procured for the landlord. The total commission is "5% of the gross rent collected over 5 yr lease term," which totaled $1,835,004. Id. Therefore the commission totaled $91,750.20. Melinda Rios Inc. agreed to split 35% of the commission with "Oren Sendowski/GMAC REAL ESTATE," leaving 65% or $59,637.63 as the "Commission Balance Due Melinda Rios Inc." Id. The "Payout of Commission to Melinda Rios Inc." was "$5,000 at lease signing," February 20, 2013, which defendants paid, with "Balance of commission to be paid in 18 monthly installments commencing at TCO," which the parties agree refers to the issuance of a Temporary Certificate of Occupancy for the leased space October 23, 2013. Id. Neither defendants nor GMAC Real Estate has paid this remaining $54,637.63.
The Commission Fee Agreement refers to the lease between landlord Marble Hill Partners LLC and tenant MiniVentures of New York "for specific information concerning this transaction." Id. Article 48 of the lease regarding "Brokerage" also provides that Melinda Rios Inc., rather than Melinda Rios, was the broker to which the landlord agreed to pay the commission that the landlord would negotiate with Melinda Rios Inc. Rios Aff. in Supp. Ex. D, at 29.
Tenant represents and warrants that it has dealt with no broker in this lease transaction other than Melinda Rios, Inc., Licensed Real Estate Broker, Bronxville, NY. Landlord agrees to pay the brokerage commission for this transaction to Melinda Rios, Inc. Said commission will be negotiated with Melinda Rios, Inc [sic] in a separate agreement.
Id.
Because plaintiff's evidence demonstrates that plaintiff was not a party to the Commission Fee Agreement dated February 20, 2013, she fails to establish her breach of contract claim. Joseph Sternberg, Inc. v. Walber 36th Assoc., 187 A.D.2d 225, 228 (1st Dep't 1993); Kopelowitz & Co., Inc. v. Mann, 83 A.D.3d 793, 797 (2d Dep't 2011); Re/Max Homes & Estates v. Leist, 308 A.D.2d 439, 440 (2d Dep't 2003). Nevertheless, if that contract is unenforceable by her, she still may recover based on a contract to which she was a party or based on quantum meruit or unjust enrichment. Resource Fin. Co. v. Cynergy Data LLC, 106 A.D.3d 562, 563 (1st Dep't 2013); Veritas Capital Mgt., L.L.C. v. Campbell, 82 A.D.3d 529, 530 (1st Dep't 2011); IIG Capital LLC v. Archipelago, L.L.C., 36 A.D.3d 401, 405 (1st Dep't 2007); Ellis v. Abbey & Ellis, 294 A.D.2d 168, 170 (1st Dep't 2002).
II. OTHER POTENTIALLY VIABLE CLAIMS IN THE COMPLAINT
Plaintiff's affidavit in support of her motion does allege an oral promise to plaintiff by Marble Hill Partners LLC, through its sole managing member Janusz Sendowski, in April 2014, that it would pay to her the six monthly payments of $18,212.53 then due once Miniventures Inc.'s owner obtained a license to operate a daycare center. This oral contract is not the contract plaintiff's current motion claims was breached and seeks to enforce, but her affidavit does support a breach of contract claim by plaintiff against Marble Hill Partners LLC. Her complaint encompasses such a claim against both defendants: "Oren Sendowski and his father Janus Sendowski . . . claim they will start to pay me $3035 [the monthly payment] whenever Shayla [Miniventures Inc.'s owner] has her license from the DOH (Department of Health) . . . ." Rios Aff. in Supp. Ex. A ¶ 32. Plaintiff's affidavit in reply alleges that Miniventures Inc. obtained a license to operate a daycare center in August 2014.
The complaint's repeated allegations that plaintiff sues for amounts specified in the schedule attached to the complaint, based on the services plaintiff provided to Marble Hill Partners LLC, also support a quantum meruit claim. Plaintiff's and her expert's affidavits supplement these allegations, setting forth the industry standard for calculating a brokerage fee for a commercial lease according to 5% of the aggregate rent the tenant has contracted to pay over the lease term.
By producing a ready, willing, and able tenant that assented to and closed on Marble Hill Partners LLC's lease provisions, plaintiff earned a brokerage commission. A.J. Clarke Real Estate Corp. v. Meyers, 27 A.D.3d 230, 230-31 (1st Dep't 2006); Srour v. Dwelling Quest Corp., 11 A.D.3d 36, 40 (1st Dep't 2004); Joseph Sternberg, Inc. v. Walber 36th Assoc., 187 A.D.2d at 228; Kaplon-Belo Assoc. v. Farrelly, 221 A.D.2d 321, 321 (2d Dep't 1995). See Norman Bobrow & Co. v. Loft Realty Co., 178 A.D.2d 175, 175 (1st Dep't 1991); Re/Max Homes & Estates v. Leist, 308 A.D.2d at 440. Once the tenant and landlord defendant Marble Hill Partners LLC signed the lease, plaintiff broker was entitled to her commission, an entitlement unaffected by any default, whether by the tenant or the landlord, under the lease. Srour v. Dwelling Quest Corp., 11 A.D.3d at 39; Cornelia & Broad Sts. v. Chase, 186 A.D.2d 341, 341-42 (3d Dep't 1992); R.B. Miller Org. v. Vasap Constr. Corp., 184 A.D.2d 763, 763-64 (2d Dep't 1992). See Norman Bobrow & Co. v. Loft Realty Co., 178 A.D.2d at 175; Kaplon-Blo Assoc v. Farrelly, 221 A.D.2d at 321. Plaintiff's claim for a commission does not depend on a signed agreement to pay the commission. Rachmani Corp. v. 9 E. 96th St. Apt. Corp., 211 A.D.2d 262, 269 (1st Dep't 1995); Joseph Sternberg, Inc. v. Walber 36th Assoc., 187 A.D.2d at 228-29; Robison v. Sweeney, 301 A.D.2d 815, 819 (3d Dep't 2003).
Even under the Commission Fee Agreement, payment of the commission is unaffected by whether the landlord collects the rent over the five years of the lease term, because the commission was to be paid "at lease signing," February 20, 2013, and in "monthly installments" commencing October 23, 2013, and ending 18 months later, long before the lease term ended. Rios Aff. in Supp. Ex. C. Plaintiff's showing that she performed her services in good faith, which defendants accepted, and for which she reasonably expected to be compensated, and her showing of the services' reasonable value, see Charles H. Greenthal Commercial Corp. v. Equity Residential Props. Trust, 300 A.D.2d 47, 47 (1st Dep't 2002), which is calculated in advance from the value of the executed lease, demonstrate a quantum meruit claim. Balestriere PLLC v. Banxcorp, 96 A.D.3d 497, 498 (1st Dep't 2012); Graubard Miller v. Nadler, 60 A.D.3d 499, 499-500 (1st Dep't 2009); Joseph Sternberg, Inc. v. Walber 36th Assoc., 187 A.D.2d at 228-29; Kopelowitz & Co., Inc. v. Mann, 83 A.D.3d at 798.
Similarly, the complaint and affidavits support an unjust enrichment claim based on the benefit Marble Hill Partners LLC realized from plaintiff's services and the parties' expectations that the landlord would pay the broker for the lease transaction. Kramer v. Greene, 142 A.D.3d 438, 442 (1st Dep't 2016); Resource Fin. Co. v. Cynergy Data LLC, 106 A.D.3d at 563; John Anthony Rubino & Co., CPA, P.C. v. Swartz, 84 A.D.3d 599, 599-600 (1st Dep't 2011); Kopelowitz & Co., Inc. v. Mann, 83 A.D.3d at 798. See Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d 511, 516 (2012); Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182 (2001). Plaintiff demonstrates a relationship with defendants that induced her to perform her services, a benefit that defendants knew she was conferring on them and for which both she and defendants expected defendants would compensate her. See Georgia Malone & Co., Inc. v. Rieder, 19 N.Y.3d at 518; Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d at 182; Murphy v. 317-319 Second Realty LLC, 95 A.D.3d 443, 445 (1st Dep't 2012).
III. NEW YORK CITY ADMINISTRATIVE CODE §§ 20-929 AND 20-933
Plaintiff's affidavit also asks to amend her complaint to add claims under New York City Administrative Code §§ 20-929 and 20-933. Administrative Code § 20-929(b) requires that: "Once a freelance worker has commenced performance of the services under the contract, the hiring party shall not require as a condition of timely payment that the freelance worker accept less compensation than the amount of the contracted compensation." Plaintiff complains that defendant Sendowski did not disclose that he was acting as a co-broker until after she had procured the tenant and negotiated the lease, and the landlord and tenant had executed a final "term sheet," at which point defendant Sendowski required her to reduce her fee by 35%. Rios Aff. in Supp. ¶ 11. Under Administrative Code § 20-933, were plaintiff were to prevail on her claim for violation of § 20-929(b), she would be entitled to double damages.
This request for relief fails on multiple grounds. Plaintiff's notice of her motion not only omits this request to add a claim, but her motion altogether omits a proposed amended complaint, which is fatal to her request. C.P.L.R. § 3025(b); PK Rest., LLC v. Lifshutz, 138 A.D.3d 434, 438 (1st Dep't 2016); McBride v. KPMG Intl., 135 A.D.3d 576, 580 (1st Dep't 2016); VFS Fin. v. Insurance Servs. Corp., 111 A.D.3d 505, 506 (1st Dep't 2013); Dragon Head LLC v. Elkman, 102 A.D.3d 552, 553 (1st Dep't 2013). Even were she to cure these deficiencies, and even assuming plaintiff qualifies as a "freelance worker" and at least one of defendants is the "hiring party" hiring plaintiff under Administrative Code § 20-929(b), it still does not avail her in recovering the total commission or even 65%. As reflected both by the above facts recited by plaintiff herself and by Article 48 of the lease, the "contract," the Commission Agreement, under which she seeks to recover "the contracted compensation" had not been entered when Sendowski asked to split the brokerage fee with her. N.Y.C. Admin. Code § 20-929(b).
Plaintiff excuses her belated request to add claims under Administrative Code §§ 20-929 and 20-933 on the grounds that these statutes were not enacted until after she filed her original complaint. This fact, however, is fatal to her application of these statutes to recover her commission or any other damages, regardless whether the statutes' substantive terms encompass her dealings with defendants. New statutes are applied prospectively and not retroactively unless the statutes' terms demonstrate an intent to apply them retroactively. 30 E. 33rd St. Realty LLC v. PPF Off Two Park Ave. Owner, LLC, 105 A.D.3d 515, 515 (1st Dep't 2013); Aguaiza Vantage Props., LLC, 69 A.D.3d 422, 423 (1st Dep't 2010). See Global Liberty Ins. Co. of N.Y. v. Spine, ___ A.D.3d ___, 88 N.Y.S.3d 865 (1st Dep't 2018). Neither Administrative Code § 20-929, nor § 20-933, nor any of their companion statutes indicates any intent to give them retroactive effect so as to apply to plaintiff's transactions with defendants in 2013. Trujillo v. Transperfect Global, Inc., 164 A.D.3d 1161, 1162 (1st Dep't 2018); 30 E. 33rd St. Realty LLC v. PPF Off Two Park Ave. Owner, LLC, 105 A.D.3d at 516. See Global Liberty Ins. Co. of N.Y. v. Spine, 88 N.Y.S.3d 865.
IV. AFFIRMATIVE DEFENSES
Finally, plaintiff moves to dismiss defendants' affirmative defenses, but fails to present any support to meet her burden of showing that any of the defenses are inadequately pleaded, legally inapplicable, or otherwise legally meritless. Pugh v. New York City Hous. Auth., 159 A.D.3d 643, 643 (1st Dep't 2018); Calpo-Rivera v. Siroka, 144 A.D.3d 668, 668 (1st Dep't 2016); Granite State Ins. Co. v. Transatlantic Reins. Co., 132 A.D.3d 479, 481 (1st Dep't 2015); 534 E. 11th St. Hous. Dev. Fund Corp. v. Hendrick, 90 A.D.3d 541, 541-42 (1st Dep't 2011). Nevertheless, C.P.L.R. § 3211(e) mandates that defendants' second affirmative defense, plaintiff's failure to serve defendants as required, "is waived if, having raised such an objection in a pleading, the objecting party does not move for judgment on that ground within sixty days after serving the pleading." Absent a timely motion based on inadequate service of the summons and complaint, defendants have waived their second affirmative defense, and the court therefore dismisses this defense. Clermont v. Abdeirehim, 151 A.D.3d 495, 496 (1st Dep't 2017); Tannenbaum Helpern Syracuse & Hirschtritt LLP v. DeHeng Law Offs., 127 A.D.3d 564, 565 (1st Dep't 2015). See Goldenberg v. Westchester County Health Care Corp., 16 N.Y.3d 323, 327 (2011).
V. CONCLUSION
For the reasons explained above, the court denies plaintiff Melinda Rios's motion for summary judgment on her claim for breach of the Commission Fee Agreement dated February 20, 2013, C.P.L.R. § 3212(b), and denies her motion to dismiss defendants' third through sixth affirmative defenses. C.P.L.R. § 3211(b). The court grants her motion insofar as it seeks to dismiss defendants' second affirmative defense of inadequate service. C.P.L.R. § 3211(b) and (e). Insofar as plaintiff seeks to amend her complaint, the court also denies that relief. C.P.L.R. § 3025(b). Melinda Rios Inc. is of course free to commence a separate action for breach of the Commission Fee Agreement within the applicable statute of limitations. C.P.L.R. § 213(2).
The trial shall proceed January 28, 2019, at 10:00 a.m., in Part 46 on any other breach of contract claims or quasi-contractual claims raised by the complaint. DATED: January 16, 2019
/s/_________
LUCY BILLINGS, J.S.C.